Citation Nr: 0502828
Decision Date: 02/04/05 Archive Date: 02/15/05
DOCKET NO. 01-01 584A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in San Diego,
California
THE ISSUE
Entitlement to service connection for a right eye disability.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
C. L. Krasinski, Counsel
INTRODUCTION
The veteran served on active duty from October 1941 to
October. He served in campaigns in the Po Valley, the North
Apennine, and Rhineland Campaigns. He also served in the
National Guard and the Reserves from March 1949 to February
1964.
This appeal comes before the Board of Veterans' Appeals
(Board) from rating decisions dated in February 2002 and
August 2002 of the Department of Veterans Affairs (VA),
Regional Office (RO), in San Diego, California which denied
entitlement to service connection for central chorioretinitis
and presumed ocular histoplasmosis syndrome of the right eye.
In July 2003, the veteran testified before the undersigned at
the RO.
In March 2004, this matter was remanded to the RO for
additional development.
In January 2005, the veteran's motion to advance on the
docket was granted.
Throughout this appeal, the veteran's claim has been
described in different ways; however, it is clear that he is
claiming entitlement to service connection for a right eye
disability no matter how it is described. The Board has
therefore, listed the issue as being entitlement to service
connection for a right eye disability.
FINDINGS OF FACT
1. Central serous retinopathy of the right eye is related to
the veteran's military service.
2. Presumed ocular histoplasmosis syndrome of the right eye
first manifested during the veteran's military service.
3. The veteran does not currently have central
chorioretinitis of the right eye.
CONCLUSIONS OF LAW
1. Central serous retinopathy of the right eye was incurred
in active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R.
§§ 3.303, 3.304 (2004).
2. Presumed ocular histoplasmosis syndrome of the right eye
was incurred in active service. 38 U.S.C.A. §§ 1110, 1111
(West 2002); 38 C.F.R. §§ 3.303, 3.304.
3. Central chorioretinitis was not incurred in or aggravated
by active service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303,
3.304.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Initial matters: Duty to Assist
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
106-419, 114 Stat. 1828 (Nov. 9, 2000) (codified at
38 U.S.C.A. §§ 5100, 5102, 5103, 5106, 5103A, 5107, 5126
(West 2002)) and amended by Pub. L. 108-183, 117 Stat. 2651
(Dec. 16, 2003) (codified at 38 U.S.C.A. §§ 5102, 5103 (West
Supp. 2004)) redefined VA's duty to assist a claimant in the
development of a claim. Regulations that implement the VCAA
are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and
3.326(a) (2004).
The VCAA requires VA to notify the claimant of any evidence
that is necessary to substantiate the claim, as well as the
evidence VA will attempt to obtain and which evidence the
claimant is responsible for providing. 38 U.S.C.A. § 5103(a)
(West 2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002).
VA will tell claimants to submit relevant evidence in their
possession. 38 C.F.R. § 3.159(b) (2004). The Court has
found that this regulation imposes a fourth VCAA notice
requirement. Pelegrini v. Principi, 18 Vet. App. 112, 120-1
(2004).
In letters dated in August 2001, November 2001, and January
2002, VA notified the veteran of the evidence needed to
substantiate the claim and offered to assist him in obtaining
any relevant evidence. The letters gave notice of what
evidence the veteran needed to submit and what evidence VA
would try to obtain. The letters informed the veteran of the
specific evidence that was considered. The letters informed
the veteran that he could submit his own evidence that
pertains to the claim. This notice served to inform the
veteran that he could submit relevant evidence in his
possession.
In Pelegrini, the Court held that the VCAA notice should
generally be provided before an initial unfavorable agency of
original jurisdiction (AOJ) decision is issued on a claim, a
claimant should generally be given notice in accordance with
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1). Pelegrini
v. Principi, at 119-20 The Court went on to say, however,
that "there is no nullification or voiding requirement [of
RO decisions issued prior to VCAA notice] either explicit or
implicit in this decision." Id. The Court noted that its
decision was not intended to invalidate RO decisions issued
prior to VCAA notice, and that a sufficient remedy for
deficient notice was for the Board to ensure that proper
notice was provided. Pelegrini v. Principi, at 120, 122-4.
In this case, the VCAA notice was provided after the initial
AOJ adjudication. The veteran ultimately received the
required notice through the above cited letters. The Board
has ensured that the required notice was given.
In any event, the veteran was not prejudiced by the delayed
notice. If he submitted additional evidence substantiating
his claim, he would have received the same benefit as if he
submitted the evidence prior to initial adjudication.
The effective date of any award based on such evidence, would
have been fixed in accordance with the claim that was the
subject of the initial adjudication. 38 C.F.R. § 3.156(b)
(2004) (new and material evidence received prior to the
expiration of the appeal period, or prior to the appellate
decision, if a timely appeal has been filed, will be
considered as having been filed with the claim, which was
pending at the beginning of the appeal period); see also 38
C.F.R. § 3.400(q)(1) (2004) (providing that when new and
material evidence is received within the appeal period, the
effective date will be set as if the prior denial had not
been made).
The Board finds that all relevant evidence has been obtained
with regard to the veteran's claim, and that the duty to
assist requirements of the VCAA have been satisfied. All
available service medical records were obtained. Pertinent
private medical records are associated with the claims
folder. In a statement dated in August 2001, the veteran
stated that he had no additional evidence to submit. There
is no identified relevant evidence that has not been
accounted for.
The VCAA requires that VA afford the claimant an examination
or obtain a medical opinion when there is competent evidence
that a claimant has a current disability, or persistent or
recurrent symptoms of a disability; there are indications
that the disability may be associated with active service;
and the record is insufficient to decide the claim.
38 U.S.C.A. § 5103A(d). In the present case, the veteran was
afforded a VA examination in September 2002. In March 2004,
a medical opinion as to the etiology of the right eye
disability was obtained.
Under the circumstances, the Board finds that there is no
reasonable possibility that further assistance would aid the
veteran in substantiating his claim. Hence, no further
notice or assistance to the veteran is required to fulfill
VA's duty to assist him in the development of the claim.
Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v.
Principi, 15 Vet. App. 143 (2001).
Pertinent Law and Regulations
Service connection will be granted for disability resulting
from a disease or injury incurred in or aggravated by
military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R.
§ 3.303.
Service connection requires competent evidence showing: (1)
the existence of a present disability; (2) in-service
incurrence or aggravation of a disease or injury; and (3) a
causal relationship between the present disability and the
disease or injury incurred or aggravated during service.
Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004),
citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see
also Caluza v. Brown, 7 Vet. App. 498 (1995).
Service connection may also be granted for a disease first
diagnosed after discharge when all of the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d) (2004).
The term "veteran" is defined as a person who served in the
active military, naval, or air service, and who was
discharged or released therefrom under conditions other than
dishonorable." 38 U.S.C.A. § 101(2) (West 2002).
The term "active military, naval, or air service" includes
active duty, any period of active duty for training during
which the individual concerned was disabled or died from a
disease or injury incurred or aggravated in line of duty, and
any period of inactive duty training during which the
individual concerned was disabled or died from an injury
incurred or aggravated in line of duty. 38 U.S.C.A.
§ 101(24) (West 2002); 38 C.F.R. § 3.6(a), (d) (2004). Thus,
the definitional statute, 38 U.S.C.A. § 101(24) (West 2002),
makes a clear distinction between those who have served on
active duty and those who have served on active duty for
training. The Court has held this statute, in effect, means
that an individual who has served only on active duty for
training must establish a service-connected disability in
order to achieve veteran status and to be entitled to
compensation. Furthermore, unless an appellant has
established status as a veteran, neither the presumption of
soundness nor the presumption of aggravation is applicable.
Paulson v. Brown, 7 Vet. App. 466, at 470 (1995).
The fact that a claimant has established status as a
"veteran" for purposes of other periods of service (e.g., a
prior or subsequent period of active duty) does not obviate
the need to establish that the claimant is also a "veteran"
for purposes of the period of active duty for training where
the claim for benefits is premised on that period of active
duty for training. Mercado-Martinez v. West, 11 Vet. App.
415, 419 (1998).
"Active duty for training" includes full-time duty performed
by Reservists for training purposes or full-time duty
performed by members of the National Guard of any state.
38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c).
For the purposes of 38 U.S.C.A. § 1110, every veteran shall
be taken to have been in sound condition when examined,
accepted, and enrolled for service, except as to defects,
infirmities, or disorders noted at the time of the
examination, acceptance, and enrollment, or where clear and
unmistakable evidence demonstrates that the injury or disease
existed before acceptance and enrollment and was not
aggravated by such service. 38 U.S.C.A. § 1111. The
presumption of soundness at entry into service attaches only
where there has been an induction examination in which the
later-complained-of disability was not detected. Crowe v.
Brown, 7 Vet. App. 238 (1994).
There are medical principles so universally recognized as to
constitute fact (clear and unmistakable proof ), and when in
accordance with these principles existence of a disability
prior to service is established, no additional or
confirmatory evidence is necessary. Congenital or
developmental defects, refractive error of the eye,
personality disorders and mental deficiency as such are not
diseases or injuries within the meaning of applicable
legislation. 38 C.F.R. § 3.303(c).
To rebut the presumption of sound condition under 38 U.S.C.
§ 1111, VA must show by clear and unmistakable evidence both
that the disease or injury existed prior to service and that
the disease or injury was not aggravated by service. The
claimant is not required to show that the disease or injury
increased in severity during service before VA's duty under
the second prong of this rebuttal standard attaches. The
provisions of 38 C.F.R. § 3.304(b) are inconsistent with
38 U.S.C.A. § 1111 insofar as section 3.304(b) states that
the presumption of sound condition may be rebutted solely by
clear and unmistakable evidence that a disease or injury
existed prior to service. VAOPGCPREC 3-2003.
When there is an approximate balance of positive and negative
evidence regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the veteran. See
38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. "A veteran need only
demonstrate that there is an 'approximate balance of positive
and negative evidence' in order to prevail." Gilbert v.
Derwinski, 1 Vet. App. 49, 53 (1990).
Analysis
Central serous retinopathy of the right eye
In this case, there is medical evidence of current right eye
disease. A March 2004 VA medical opinion states that it was
possible that the veteran had central serous retinopathy of
the right eye.
There is competent evidence of a link between the diagnosis
of central serous retinopathy of the right eye and service.
The VA examiner who examined the veteran and rendered the
March 2004 medical opinion indicated that the disease entity,
central serous retinopathy, was rather common in young men
under extreme stress, such as military combat. The VA
examiner stated that central serous retinopathy was the
leakage of fluid from the choriocapillaris under the macula
and causes symptoms identical to those of subretinal
neovascularization from presumed ocular histoplasmosis
syndrome of the right eye. The VA examiner noted that from
the peripheral retinal lesions and other systemic findings
that the veteran had presumed ocular histoplasmosis syndrome
of the right eye and even histoplasmosis of the lungs. The
VA examiner further stated that it was certainly possible
that the veteran had central serous retinopathy in the right
eye rather than the macular chorioretinitis from presumed
ocular histoplasmosis syndrome, and it would indeed be
brought on by his military service.
The record shows that the veteran served with the 340th Bomb
Squadron and his occupation was armorer on a B-17 bomber in
the European Theater during World War II. The veteran manned
a flexible machine gun during combat missions. He served in
air combat in the Balkans, and was awarded an Air Medal. The
Board finds that this evidence supports the VA examiner's
conclusion that the veteran was under extreme stress and was
in military combat in service.
The Board notes that there is some evidence against the
claim. This evidence is in the form of private medical
records. A December 1957 private medical record by Dr. T.M.
indicates that the veteran had central chorioretinitis of the
right eye.
The VA examiner who rendered the March 2004 VA medical
opinion, however, examined the veteran and reviewed the
entire claims folder, which includes the 1957 private medical
records and reports. The VA examiner essentially concluded
that the veteran had central serous retinopathy which was the
result of the stress from combat in service. There is no
competent medical opinion against that of the VA examiner.
In the December 1957 report, Dr. T.M. indicated that the
veteran was being treated for central chorioretinitis of the
right eye. Dr. T.M. did address the possible diagnosis of
central serous retinopathy. The Board concludes that the
evidence is in favor of a conclusion that the veteran
incurred central serous retinopathy of the right eye as a
result of extreme stress from military combat.
Ocular histoplasmosis syndrome of the right eye
In this case, there is medical evidence of a current
diagnosis of presumed ocular histoplasmosis syndrome of the
right eye. The September 2002 VA examination report and
March 2004 VA medical opinion reflect diagnoses of presumed
ocular histoplasmosis syndrome of the right eye.
The medical evidence of record establishes that it was more
likely than not that the veteran contracted presumed ocular
histoplasmosis syndrome of the right eye prior to his
military service. The VA examiner indicated that presumed
ocular histoplasmosis syndrome occurs in individuals who have
lived in endemic areas for the histoplasmosis fungus. These
areas include the Ohio River Valley and parts of the
Mississippi River Valley. The VA examiner indicated that
approximately 90 percent of the individuals living in these
areas have apparently been exposed to histoplasmosis, but
only a very small percent actually develop signs of the
infection and a smaller percentage actually develop active
disease. The VA examiner noted that it is thought that their
immune system does not handle the organism in the usual way,
and years later, there can be inflammation somehow related to
the encapsulated product of the infection.
The VA examiner stated that the presumed ocular
histoplasmosis syndrome of the right eye only comes to the
attention of the patient if a lesion develops in a macular
area, causing distortion and visual loss from subretinal
neovascularization; peripheral punched out lesions are often
seen on the routine examination of an asymptomatic person
from an endemic area. The VA examiner stated that the
veteran apparently served in endemic areas and he was also
raised in an endemic area. The VA examiner stated that given
the fact that the veteran was raised in an endemic area where
90 or so percent of residents are exposed to histoplasmosis,
it was more likely than not that the veteran contracted
histoplasmosis prior to his military service.
However, the VA examiner concluded that the onset of the
clinical disease of presumed ocular histoplasmosis syndrome
of the right eye occurred during the veterans military
service. The VA examiner stated that this situation was not
unlike the veterans who first are diagnosed with ailments
such as retinitis pigmentosa. The VA examiner based this
medical conclusion upon examination of the veteran, the
veteran's report of symptoms, and review of the claims
folder.
The February 1942 enlistment examination indicates that
examination of the veteran's eye was normal. Vision in the
right eye was 20/20. Since presumed ocular histoplasmosis
syndrome of the right eye was not noted when the veteran was
examined and accepted for service, the veteran is entitled to
the presumption of sound condition under 38 U.S.C.A § 1111
(West 2002). Accordingly, to rebut this presumption, VA must
show by clear and unmistakable evidence both that the disease
or injury existed prior to service and that the disease or
injury was not aggravated by service. The claimant is not
required to show that the disease or injury increased in
severity during service before VA's duty under the second
prong of this rebuttal standard attaches. See VAOPGCPREC 3-
2003.
The Board finds that presumed ocular histoplasmosis syndrome
of the right eye is not shown by clear and unmistakable
evidence to have been manifested prior to service. The
evidence of record shows that the veteran was exposed to
histoplasmosis prior to service, but there is no evidence of
a manifestation of presumed ocular histoplasmosis syndrome of
the right eye prior to service.
As discussed above, there is medical evidence that this
disease had its onset in service. Accordingly, since the
onset of presumed ocular histoplasmosis syndrome of the right
eye were not shown by clear and unmistakable evidence to have
been manifested prior to service, this disease can be
considered to have been incurred in service.
Central chorioretinitis of the right eye
In this case, there is no medical evidence of a current
diagnosis of central chorioretinitis of the right eye. The
record shows that the central chorioretinitis was diagnosed
in October 1957. There is no medical evidence of a current
diagnosis. The September 2002 VA examination report and
March 2004 VA medical opinion do not reflect diagnoses of
central chorioretinitis of the right eye.
A grant of service connection requires a showing of current
disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.
Cir. 2004) (holding that service connection requires a
showing of current disability); see also Gilpin v. West, 155
F.3d 1353 (Fed. Cir. 1998) (holding that a grant of service
connection requires that there be a showing of disability at
the time of the claim, as opposed to some time in the distant
past).
In this case there is no medical evidence of current central
chorioretinitis of the right eye. Since there is no evidence
of that disability, the preponderance of the evidence is
against establishing service connection for that aspect of
the claim. Gilbert, 1 Vet. App. 49.
In sum, the evidence is in favor of the grant of service
connection for a right eye disability, namely serous
retinopathy and ocular histoplasmosis syndrome.
ORDER
Entitlement to service connection for a right eye disability,
namely serous retinopathy and ocular histoplasmosis syndrome,
is granted.
____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs